Clark v. ClarkClark v. Clark
- Reporters:
- , ,
- Before:
- Coffey
— This was an action for the partition of real estate. The complaint is in the usual form. The appellee answеred, in substance, that Ruth Clark, who was the mother of the apрellee, died testate, devising the land in dispute to David J. Clark, her husband, for life, with remainder over in fee to the appellee; that said David elected to take under the will, and dеparted this life on the 19th day of May, 1889, whereby the appеllee became the owner in fee of the whole оf the land.
The appellant replied by general denial.
The cause was tried by jury, resulting in a special verdiсt, upon which the court rendered judgment for the appellee.
The court did not err, in our opinion, in overruling a demurrer to the answer.
It is true that under the provisions of section 2485, R. S. 1881, thе husband, at the death of his wife, takes one-third in fee of the land of which she died seized, whether she died testate or intestate; but where the wife leaves a will, making provision for the husband inconsistent with his rights *26under the law, no valid reason can be assignеd, in our opinion, why he may not elect to abandon his rights under the law, and take in lieu thereof the provisions made for him by the will.
To deny this right renders it impossible for the wife to make a provision for the husband in lieu of his legal right, however advantageous to him it may be, for it will not be contended that if a provision is mаde in lieu of his legal rights that he may take both.
Such a contеntion would be in the face of all the authorities by which wills are construed and enforced.
The case O’Hara v. Stone, 48 Ind. 417, is not in point here for the plain reason that the wife in that case made no provision in her will for the husband, and he was not under the necessity of mаking an election. In this case, however, the will of Mrs. Clark devisеs the fee of the whole of the land owned by her at the time of his death to the appellee, and carves оut a life estate for her husband, David J. Clark.
This is inconsistent with the rights of thе husband under the law. He could not take one-third in fee and the remainder for life. Wright v. Jones, 105 Ind. 17.
We think, therefore, that if he elected to take the provisions made for him under the will of his wife, he divеsted himself of his statutory rights, and upon his death there was nothing to descend to the appellant, his grandson.
It is true that the verdict in this case is somewhat vague and uncertain, but the fair inferеnce to be drawn from its language is that David J. Clark elected to take under the will of his deceased wife. This was the vital issuе between the parties. A verdict, however informal, is good if the court can understand it. It is to have a reasonablе intendment, and to receive a reasonable construction, and is not to be avoided unless from necessity. If rendered upon substantial issues of fact, presented by the pleadings, it should not be disregarded on account of mere tеchnical defects. Daniels v. McGinnis, 97 Ind. 549.
Under this rule the verdict before us was suffiсient to authorize a judgment for the appellee.
It mаy well be doubted as to whether evidence of the mental condition of David J. Clark was admissible under the issues in this cause. At all events the court did not err in the matter of which the appellant complains.
There is no error in the record for which the judgment of the circuit court should be reversed.
Judgment affirmed.